Non-regulatory note: Some sections of this regulation are shown in italics. Federal law requires that the Delaware Department of Education identify in writing any Delaware rule, regulation or policy that is a state-imposed requirement rather than a federal requirement (see 20 USC §14079(a)(2)). The italicized portions of this regulation are Delaware-imposed requirements for the education of children with disabilities and are not specifically required by federal special education law and regulations.

1.2.2 If a child's third (3rd) birthday occurs during the summer, the child's IEP Team shall determine the date when services under the IEP will begin.

1.2.3 Children advancing from grade to grade:Each public agency shall ensure that FAPE is available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade.

3.2 Nothing in these regulationsrelieves an insurer or similar third party from an otherwise valid obligation to provide or to pay for services provided to a child with a disability.

3.3 Consistent with 14 DE Admin. Code 925.23.2, each public agency shall ensure that there is no delay in implementing a child's IEP, including any case in which the payment source for providing or paying for special education and related services to the child is being determined.

“Extended School Year Services” means special education and related services that are provided to a child with a disability beyond the normal school year of the public agency in accordance with the child's IEP and at no cost to the parents of the child; and meets the standards of the DOE.

7.3 Transportation:Transportation of all children to and from school shall be provided in accordance with 14 Del.C. Ch. 29.

7.3.1 When special transportation needs are identified in the IEP of a child with a disability, transportation shall be deemed a related service. Transportation provided to accommodate a related service shall be at the expense of the LEA or other public agency, including, but not limited to, the costs of travel to and from school and between schools, and any required specialized equipment.

7.3.2 Transportation incidental to the educational program of a child with a disability shall not be at the expense of the public agency, including, but not limited to work study arrangements, cooperative work arrangements, and extracurricular activities.

7.3.3 Travel arrangements shall be made in consultation with the public agency’s transportation representative when unusual requirements are necessary for a child with a disability.

9.1 Full educational opportunity:Each public agency shall ensure full educational opportunity is offered to its eligible children with disabilities.

9.2 Length of school day: The minimum length of the instructional school day for a child with a disability in Kindergarten through grade twelve (12) shall be the same as it is for non-disabled children in those grades. The minimum length of the school day for disabled pre kindergarten children shall approximate that of non-disabled pre-Kindergarten children, except in a program for the hearing impaired in which the parent is involved in the educational program. In such a program, the school and the parent together shall determine the schedule for at least 5 hours per week of instruction.

9.3 Compulsory school attendance:Compulsory school attendance requirements shall be in accordance with 14 Del.C. §2702 and §705, and shall apply to children with disabilities between the ages of five (5) and sixteen (16). Attendance of children with disabilities under or over the compulsory school attendance age range, as provided in 14 Del.C. §2702, shall be determined by the IEP team and subject to the eligibility criteria and procedural safeguards provided in these regulations.

10.2 Vocational Education and Career Technical Programs and Services:Vocational and career technical programs and services shall be provided to children with disabilities as determined appropriate by each child’s IEP team. Each public agency shall ensure the provision of a vocational and career technical program in the least restrictive environment permitting children with disabilities equal access to:

10.2.1 Recruitment, enrollment and placement activities and the full range of vocational programs available to all students including occupational specific courses of study, cooperative education, apprenticeship programs and to the extent practicable, comprehensive career guidance and counseling services.

10.2.2 Supplementary services to children with disabilities, including:

10.2.2.1 Codification of curriculum, equipment and facilities as needed;

10.2.3 An appropriate career technical education to children with disabilities, including access to Career Pathways, through the availability of a continuum of career technical education programs, including, but not limited to:

10.2.3.1 Regular career technical programs with no supportive services;

10.2.3.2 Regular career technical programs with supportive services as identified by the IEP team;

11.6 Other children in child find: Child find also shall include children who are suspected of being a child with a disability as defined in 14 DE Admin. Code 922.3.0 and in need of special education, even though they are advancing from grade to grade; and highly mobile children, including migrant children.

11.8 Rule of Construction. Nothing in these regulations requires that children be classified by their disability so long as each child who has a disability that is listed in 14 DE Admin. Code 922.3.0 (in the definition of child with a disability) and who, by reason of that disability, needs special education and related services is regarded as a child with a disability under Part B of the Act.

11.9.1 Problem solving in general education classroom and instructional support teams: The identification and child find procedures required in 11.0, shall include a systematic problem solving process to examine the nature and severity of an educationally related problem. These procedures shall primarily focus on variables related to developing effective educationally related interventions. Active parent participation is an integral aspect of the process and is solicited throughout. At a minimum, the process shall include:

11.9.1.1 Description of problem: The presenting problem or behavioral concern is described in objective, measurable terms that focus on alterable characteristics of the individual and the environment. The individual and environment are examined through systematic data collection. The presenting problem or behavioral concern are defined in a problem statement that describes the differences between the demands of the educational setting and the individual’s performance.

11.9.1.2 Data collection and problem analysis: A systematic, data-based process for examining all that is known about the presenting problem or behaviors of concern is used to identify interventions that have a high likelihood of success. Data collected on the presenting problem or behaviors of concern are used to plan and monitor interventions. Data collected are relevant to the presenting problem or behaviors of concern and are collected in multiple settings using multiple sources of information and multiple data collection methods. Data collection procedures are individually tailored, valid for the concern addressed, and reliable, and allow for frequent and repeated measurement of intervention effectiveness.

11.9.1.3 Intervention design and implementation: Interventions are designed based on the preceding analysis, the defined problem, parent input, and professional judgments about the potential effectiveness of interventions. The interventions are described in an intervention plan that includes goals and strategies, a progress monitoring plan, a decision making plan for summarizing and analyzing progress monitoring data, and responsible parties. Interventions are implemented as developed and modified on the basis of objective data and with the agreement of the responsible parties.

11.9.1.4 Progress monitoring: Systematic progress monitoring is conducted which includes regular and frequent data collection, analysis of individual performance across time, and modification of interventions as frequently as necessary based on systematic progress monitoring data.

11.9.1.5 Evaluation of intervention effects: The effectiveness of interventions is evaluated through a systematic procedure in which patterns of individual performance are analyzed and summarized. Decisions regarding the effectiveness of interventions focus on comparisons with initial levels of performance and rate of progress toward meeting grade level expectations.

11.9.2 The identification and child find procedures required in 11.0, shall also include procedures to establish, and to refer students to, school or program based instructional support teams. The agency’s procedures shall include the following requirements:

11.9.2.1 The instructional support team shall include members collectively qualified to assist in the identification of instructional and behavioral intervention strategies for learning and behavioral problems and needs.

11.9.2.2 The instructional support team process shall ensure that a student’s learning and behavioral needs are comprehensively assessed. It shall include consideration, as appropriate, of curriculum based assessment measures, analyses of instructional variables, systematic observations, functional assessments and current health information.

11.9.2.3 Baseline and progress monitoring data shall be collected and used to inform intervention strategies.

11.9.2.4 All initial referrals to the instructional support team shall be in writing. Written documentation of the instructional support team process shall be maintained for each student.

11.9.2.5 The instructional support team process may or may not lead to referral for initial evaluation to determine eligibility for special education services.

11.9.2.5.1 When the instructional support team determines the student should be evaluated to determine eligibility for special education services, the team shall forward a written recommendation to an appropriate, designated staff member within ten (10) school days.

11.9.2.5.2 Within ten (10) school days of the recommendation, the student’s parents shall be notified in writing of the team’s recommendation that the student be evaluated for special education services. The notification shall include a request for parental consent for initial evaluation.

11.9.2.5.3 Referrals for an individual student that do not contain all required information and documentation, including the data and other evidence described in 11.9.2.2 and 11.9.2.3, may be returned to the instructional support team with a request that they be supplemented. Parental notification of the team’s recommendation, and the request for consent for initial evaluation, shall still occur within ten (10) school days of the initial team recommendation.

14.3 Interagency and Special Programs: When a child’s IEP Team determines the child’s needs cannot be met appropriately in the LEA of residence or other public agency, inter-LEA or interagency programs shall be considered within least restrictive environment requirements.

14.4 Interagency agreements:A written Interagency Agreement shall be developed between or among LEAs or other public agencies when special education and related services for children with disabilities are provided in whole, or in part, by an LEA or LEAs, other than the LEA of residence.

14.4.1 The agreement may be initiated by the LEA, public agency, or the DOE.

14.4.2 The DOE shall be a party to the agreement when the services are provided through a special school or program approved by the State Board of Education.

14.5.2 Chairing, designating, or agreeing upon a chairperson for all meetings;

14.5.3 Communicating the name of the child to be discussed; the date and place of meeting to individuals involved; and

14.5.4 Communicating recommendations of staffing to all appropriate staff.

14.6 When it is suspected the child's need for special education can only be met in an inter-LEA or interagency program, then an IEP meeting shall be arranged by the LEA of residence. The following procedures for an IEP meeting shall be followed:

14.6.1 Representatives of the inter-LEA or interagency program shall participate in the IEP meeting;

14.6.2 A representative of the LEA of residence shall be a member of the child's IEP team; and

14.6.3 Arrangements for all evaluation and diagnosis, whether initial or reevaluation, shall be the responsibility of the child's LEA of residence.

Each public agencyshall ensure that 14.0 (LRE requirement) is effectively implemented, including, if necessary, making arrangements with public and private institutions (such as a memorandum of agreement or special implementation procedures).

24.2 By the third (3rd) birthday of a child described in 24.1, or an earlier age as otherwise provided in these regulations, an IEP has been developed and is being implemented for the child consistent with 1.2.1; and each affected LEA will participate in transition planning conferences arranged by the designated lead agency under section 635(a)(10) of the Act.

Definition: “Parentally Placed Private School Children with Disabilities” means children with disabilities enrolled by their parents in private, including religious, schools or facilities that meet the definition of elementary school or secondary school in 14 DE Admin. Code 922.3.0, other than children with disabilities covered in 45.0 through 47.0.

32.1 General:To the extent consistent with the number and location of children with disabilities who are enrolled by their parents in private, including religious, elementary schools and secondary schools located in the school district served by the LEA, provision is made for the participation of those children in the program assisted or carried out under Part B of the Act by providing them with special education and related services, including direct services determined in accordance with 37.0.

33.3 Annual count of the number of parentally placed private school children with disabilities: Each LEA shall after timely and meaningful consultation with representatives of parentally placed private school children with disabilities (consistent with 34.0), determine the number of parentally placed private school children with disabilities attending private schools located in the LEA; and ensure that the count is conducted on any date between October 1 and December 1, inclusive, of each year.

33.4 Supplement, not supplant: State and local funds may supplement and in no case supplant the proportionate amount of Federal funds required to be expended for parentally placed private school children with disabilities under these regulations.

34.1.4.4 Written explanation by LEA regarding services: How, if the LEA disagrees with the views of the private school officials on the provision of services or the types of services (whether provided directly or through a contract), the LEA will provide to the private school officials a written explanation of the reasons why the LEA chose not to provide services directly or through a contract.

36.2 Procedure:If the private school official wishes to submit a complaint, the official shall provide to the DOE the basis of the noncompliance by the LEA with the applicable private school provisions in these regulations; and the LEA shall forward the appropriate documentation to the DOE.

37.4 Services plan for each child served in 30.0through 44.0: If a child with a disability is enrolled in a religious or other private school by the child's parents and will receive special education or related services from an LEA, the LEA shall:

Applicability:Sections46.0 through 47.0 apply only to children with disabilities who are or have been placed in or referred to a private school or facility by a public agency as a means of providing special education and related services.

Eachpublic agency that places a child with a disability at a private school or facility shall ensure the child is provided special education and related services in conformance with an IEP that meets the requirements of 14 DE Admin. Code 925.20.0 through 925.25.0; and at no cost to the parents; is provided a FAPE; and has all of the rights of a child with a disability who is served by a public agency.

48.3 Reimbursement for private school placement: If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing panel finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing panel or a court even if it does not meet the State standards that apply to education provided by the DOE and LEAs.

48.5 Exception: Notwithstanding the notice requirement in 48.4.1 and 48.4.2 the cost of reimbursement shall not be reduced or denied for failure to provide the notice if: the school prevented the parents from providing the notice; the parents had not received notice, 14 DE Admin. Code 926.4.0, of the notice requirement in 48.4.1 and 48.4.2 or compliance with 48.4.1 and 48.4.2 would likely result in physical harm to the child; and

49.1 The DOEshall ensure that the requirements of these regulations are carried out; and that each educational program for children with disabilities administered within the State, including each program administered by any other State or local agency is under the general supervision of the DOE; and meets the educational standards of the DOE (including the requirements of these regulations).

49.5 In addition to any other authority available under these regulations or State law, DOE may use any of the following activities and mechanisms to identify and correct noncompliance and to document and exercise its general supervisory responsibilities: interagency agreements; compliance monitoring; dispute resolution systems (due process hearings, state complaints and mediation); general project coordination and contracting; specific program evaluations; personnel systems; public dissemination of information; and financial and administrative audits and reporting.

49.5.1 Compliance monitoring: DOE may use any reasonable method to collect, analyze and verify information to monitor compliance with Part B and these regulations.

49.5.1.1 Monitoring methods may include, but are not limited to, use of offsite review, on site review, letters of inquiry, and follow up and verification of specific activities.

49.5.1.2 Potential noncompliance may be identified from any generally reliable source of information, including but not limited to, complaints, hearings and court decisions, evaluation and performance reports, and other formally submitted documents to determine if agencies and programs are in need of specific compliance interventions.

49.5.1.4 DOE shall notify a public agency in writing when it identifies noncompliance. The notice shall describe each corrective action which shall be taken, including a reasonable time frame for submission of a corrective action plan, and require that the corrective action plan provide for: the immediate discontinuance of the violation; the prevention of the occurrence of any future violation; documentation of the initiation and completion of actions to achieve current and future compliance; the timeframe for achieving full compliance; and the description of actions the agency shall take to remedy the identified areas of noncompliance.

49.5.1.6 In all events, noncompliance shall be corrected within one (1) year of the date DOE identifies the noncompliance.

49.5.2Enforcement: DOE shall have the authority to enforce legal obligations under these regulations, and to compel the correction of deficiencies in program operations and other identified noncompliance. DOE may enforce its authority by any mechanism available under State or federal law and these regulations, including but not limited to, directing public agencies to correct noncompliance; imposing specific conditions on funding; imposing appropriate sanctions for failing or refusing to correct noncompliance; and withholding funding in whole or part.

49.5.3 DOE shall distribute these regulations, required and model forms, guidance, and letters of general notification to all public and private agencies providing services to children with disabilities. DOE shall determine the method of dissemination, which may include regular mail, electronic mail, website postings and distribution at State or county meetings.

51.1 General: The DOE shall resolve any complaint, including a complaint filed by an organization or individual from another State, that meets the requirements of 53.0 by implementing the State complaint procedures under 51.0 through 53.0; and widely disseminate to parents and other interested individuals, including parent training and information centers, protection and advocacy agencies, independent living centers, and other appropriate entities, the State complaint procedures.

51.2 Remedies for denial of appropriate services: In resolving a complaint in which the DOE has found a failure to provide appropriate services, the DOE, pursuant to its general supervisory authority under Part B of the Act, shall address the failure to provide appropriate services, including corrective action appropriate to address the needs of the child (such as compensatory services or monetary reimbursement); and appropriate future provision of services for all children with disabilities.

52.4.1 If a written complaint is received that is also the subject of a due process hearing in 14 DE Admin. Code 926.7.0, or 926.30.0 through 926.32.0, or contains multiple issues of which one or more are part of that hearing, the DOE shallset aside any part of the complaint that is being addressed in the due process hearing until the conclusion of the hearing. However, any issue in the complaint that is not a part of the due process action shall be resolved using the time limit and procedures described in 52.1 and 52.2.

54.2 Obligation of non educational public agencies:If any public agency other than an educational agency is otherwise obligated under Federal or State law, or assigned responsibility under State policy or pursuant to 54.1, to provide or pay for any services that are also considered special education or related services (such as, but not limited to, services relating to assistive technology devices, assistive technology services, related services, supplementary aids and services, and transition services) that are necessary for ensuring FAPE to children with disabilities within the State, the public agency shall fulfill that obligation or responsibility, either directly or through contract or other arrangement pursuant to 54.1or an agreement pursuant to 54.4.

54.4 Special rule: The requirements of 54.1 may be met through State statute or regulation; signed agreements between respective agency officials that clearly identify the responsibilities of each agency relating to the provision of services; or other appropriate written methods as determined by the Secretary and approved by the Secretary of the United States Department of Education.

54.5 Children with disabilities who are covered by public benefits or insurance:A public agency may use the Medicaid or other public benefits or insurance programs in which a child participates to provide or pay for services required under these regulations, as permitted under the public benefits or insurance program, except as further provided in this section. With regard to services required to provide FAPE to an eligible child under these regulations, the public agency:

56.2 Related services personnel and paraprofessionals: The requirements in 56.1 include qualifications for related services personnel and paraprofessionals. Such requirements shall be interpreted consistent with any State approved or State recognized certification, licensing, registration, or other comparable requirements that apply to the professional discipline in which those personnel are providing special education or related services; and ensure that related services personnel who deliver services in their discipline or profession:

On an annual basis, theState shall describe how amounts retained for State administration and State level activities in 14 DE Admin. Code 928.4.0 will be used to meet the requirements of these regulations; and how those amounts will be allocated among the activities described in 14 DE Admin. Code 928.4.0 to meet State priorities based on input from LEAs.

72.1.3 Inorder to assist the DOE in meeting its responsibility in 72.1.2, each public agency shalltake reasonable steps to provide instructional materials in accessible formats to children with disabilities who need those instructional materials at the same time as other children receive instructional materials.

“Blind Persons or Other Persons with Print Disabilities” means children served under these regulationswho may qualify to receive books and other publications produced in specialized formats in accordance with the Act entitled “An Act to provide books for adult blind,'' approved March 3, 1931, 2 U.S.C 135a;

The State shallhave in effect, consistent with the purposes of these regulations and with section 618(d) of the Act, policies and procedures designed to prevent the inappropriate overidentification or disproportionate representation by race and ethnicity of children as children with disabilities, including children with disabilities with a particular impairment described in the definition of child with a disability in 14 DE Admin. Code 922.3.0.

74.1 General: All public agencyand LEA personnel are prohibited from requiring parents to obtain a prescription for substances identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)) for a child as a condition of attending school, receiving an evaluation, or receiving services under these regulations.

74.2 Rule of construction:Nothing in 74.1 shall be construed to create a Federal prohibition against teachers and other school personnel consulting or sharing classroom based observations with parents or guardians regarding a student's academic and functional performance, or behavior in the classroom or school, or regarding the need for evaluation for special education or related services in 11.0 (related to child find).

99.3 Support and facilitation: TheDOE’s rules, regulations, and policies under Part B of the Act shall support and facilitate LEA and school level system improvement designed to enable children with disabilities to meet the challenging State student academic achievement standards.